prevails, and if Congress can tax any calling for the purpose of destroying it? It is conceded that the mere imposition of a tax by the United States does not authorize a person to pursue an occupation where it is prohibited by State laws, and that the regulation of occupations is in the domain of the police power of the State. Of what value is this power to the States, if the United States may, for the purpose of controlling an occupation, impose a tax so high as to be prohibitory?

But it may be said that it is admitted that States, in the exercise of the police power, and for the purpose of suppressing or diminishing the number of those who follow occupations supposed to be injurious to the community, sometimes impose prohibitory taxes. It is true, and it is legitimate. In the State the police and the taxing powers are inherent, but in the federal government all its powers are derivative. It has no police power, because none has been delegated. It has a taxing power, but that power is limited as to the purposes for which it may be exercised, first, to the common defense; second, the national debts; third, the ordinary civil expenses of the government in the exercise of its delegated powers, exercised for the general welfare of the United States. It has no delegated power of taxation to be used to destroy rights created by the States in the exercise of their reserved rights.?

How far the views here stated would affect the doctrine of a protective tariff, as against a tariff for revenue merely, it is not necessary or proper to consider. The question here is not as to a tax which which may have been imposed for revenue, but a tax imposed avowedly not to protect any interest, but to destroy a great and important interest. Nor is it intended here to question the power of Congress to regulate the currency, and, if necessary for the proper exercise of that power, to prohibit State banks, and to enforce the prohibition by suitable penalties. Then it would be acting in the exercise of a power expressly granted. The protest is against the use of a power granted for a designated purpose, for another and distinct purpose— the accomplishment of an end by means not authorized by the Constitution. The insidious encroachments of power are those most to be dreaded.

1 License Tax Cases, 5 Wall. 462, 475; McGuire v. Massachusetts, 3 Wall. 387; U.S. v. Riley, 5 Blatch. C. C. 204.

Cooley on Taxation, p. 75. See also Berney v. Tax Collector, 2 Bailey, 654, where Harper, J., protests against the doctrine that the right to tax carries with it the right to destroy.

1

Unstamped Instruments not to be used as Evidence.-The power of Congress to declare that instruments not stamped shall not be used as evidence has been doubted. It is said that Congress cannot prescribe the rules of evidence for the State courts; and in reference to the provision that deeds and other instruments unstamped shall not be recorded, that it is not in the power of Congress to prescribe for the States a rule for the transfer of property within them. This class of cases holds that the act of Congress can only be operative in the federal courts. The object of Congress in these acts was not to prescribe the rules of evidence for State courts, nor to regulate the transfer of property; each of these subjects is beyond its power. The object was to enforce the payment of a tax, and collect its revenue. When it is once admitted that Congress had authority to impose a stamp tax, it is exceedingly difficult to say what measures may not be used to enforce its collection. It is conceded as to customs and internal revenue that it may forfeit the subject on which the tax is levied for non-payment of the tax. If it may forfeit the subject, a fortiori, it may declare that the paper writing which is evidence of the transfer may not be used until the tax is paid. In the language of Justice Agnew, "The instrument being a proper subject for the federal power to tax, it is just as clearly competent to affix a disability to the unstamped paper that will compel the payment of the tax. The very touchstone of the value of the writing to the party who claims under it is his ability to put it in evidence. It is just here the law touches the writing with its power, and makes it useless to the party until he performs his duty by paying the tax upon it." 2

*

* *

Another illustration of the great latitude allowed in enforcing the payment of a tax, is the act of 1864, § 97, relating to contracts for the sale of manufactured articles made before the passage of the act, where there was nothing said in the contract as to the tax. The tax on manufactured articles falls on the consumer, and such is the intention in all such tax laws. The tax forms an item in the cost of manufacture, for which the consumer pays. Where the contract is made before the passage of a law imposing a tax, the effect would be just the reverse; the burden of the tax would be on the manufacturer. This act allows the manufacturer in such cases, where he has paid the

1 Carpenter v. Snelling, 97 Mass. 452; Lawrence v. Halloway, 21 Mich. 162; Hallock v. Jaudin, 34 Cal. 167; Moore v. Moore, 47 N. Y. 467; Moore v. Quirk, 105 Mass. 49; Forcheima v. Holly, 14 Fla. 239; Davis v. Richardson, 45 Miss. 429; Sporrer v. Eifler, 1 Heisk. 633; Bumpass v. Taggart, 26 Ark. 398.

Chartiers & Robinson Turnpike Co. v. McNamara, 72 Penn. St. 278, a very able opinion by Justice Agnew, which demonstrates the validity of the act.

tax to recover the amount so paid from the purchaser, thus placing the tax on the consumer, where it ordinarily falls. Having full discretion to say who shall pay the tax, for convenience in collecting the tax, it may provide that one party shall pay to the government and then recover it of another. This principle is involved in the tax on the bonds of corporations, where the corporation is directed to retain the amount of the tax when paying the interest to the creditors.1

In England a similar statute was considered valid, and in this country such an act has been held not only to apply to contracts for the sale of manufactured articles for money, but to a contract for a sale of iron ore, to be paid for in pig iron.3

§ 153. Customs-Manifest-Report of Master-Entry of Merchandise-Officers of Customs-Invoice.-The tax on the importation of merchandise from foreign countries, usually spoken of as duty or custom house duty, is one of the principal sources of federal revenue. Like State taxes, the amount of the tax is determined and fixed by the legislative branch of the government. The persons who are to pay and the amount to be paid by each person are determined by ministerial officers, who exercise functions that are judicial in their character, and it is collected through ministerial officers. From the nature of the tax, the mode of its assessment and collection differs widely from the system of State taxation, although the same principles of law underlie the system.

The tax being on goods which come from other countries, the system adopted is one that lays hold of the goods as they enter the country, and as the most of such goods come by water, the regulations on the subject treat principally of the vessels which carry such goods, imposing heavy penalties on the masters and owners of vessels, and in some cases forfeiting the vessels and the goods for a violation of the revenue laws.

The whole country is divided into collection districts, in each of which there is a custom house, and certain officers charged with the assessment and collection of duties. In these districts there are certain ports designated as ports of entry, and others only as ports of delivery. It is not lawful to make entry of any vessel which shall arrive in the United States, from any foreign port, or of her cargo, elsewhere than at one of these designated ports.

1 Ammidown v. Freeland, 101 Mass. 303.

Nor is it lawful to

Stat. 43 Geo. III, ch. 81; Haig v. Mapier, 1 Dowl. 255; Dawson v. Linton, 5 B. &

Ald. 521; Foster v. Fay, 2 Bing. N. C. 269.

3 Hudson Iron Co. v. Alger, 54 N. Y. 173.

4 R. S. U. S. §§ 2517 to 2608.

unload the cargo of such vessel at any port other than one of the ports of delivery designated, but every port of entry is also a port of delivery. There is this exception as to entry, that a vessel may make entry with the collector of any district in which such vessel may be owned, or from which she may have sailed on the voyage from which she shall have then returned. With the exception of merchandise imported on the northern and northwestern frontier from the Dominion of Canada, and on the southern frontier from Mexico, no merchandise of foreign growth or manufacture is allowed to be brought into the United States from any foreign port in any other manner than by sea, nor in any vessel of less than thirty tons burden."

Inspection. The customs regulations reach the merchandise before its arrival. The masters of vessels carrying merchandise from foreign countries destined to the United States, when they arrive within four leagues of the coast, or within any of the bays, harbors, ports or inlets thereof, are required upon demand, to produce the manifest of the goods, to such officer of the customs as shall come aboard of their ship, for his inspection, and it is made the duty of the officer inspecting to certify the fact of compliance with that requirement, and the day when it was so produced.3

Manifest.-No merchandise is allowed to be brought into the United States from any foreign port unless the master has on board a manifest in writing of the cargo, signed by him. It is to contain the name of the port where the merchandise was taken on board, and the names of the ports for which it is destined; a description of the vessel, the tonnage thereof, the port to which she belongs, and the names of the owner and master; a full, particular and accurate description of the merchandise on board, the marks and numbers on the packages, the number or quantity of packages, in words at length, describing the same by the usual name or denomination, and the names of the persons to whom the packages are consigned, unless they be consigned to order, when the manifest shall so state; the names of the passengers, distinguishing whether cabin or steerage, with their baggage, specifying the number and description of the packages belonging to each, and an account of the sea-stores remaining, if any. If

1 R. S. U. S. § 2770, 2771.

2 R. S. U. S. § 3095. Articles by mail if subject to duty are liable to seizure. 22 Int. Rev. R. 25, 95, 358. If the package is open or unsealed it may be seized at once, but if sealed it is to marked "suspected liable to customs duty," and sent to its destination before seizure.

3 R. S. U. S. § 2811.

4 R. S. U. S. § 2807.

the merchandise is not all destined to be delivered at one port, the manifest must show the specific merchandise for each port.1

Entry and Report of Master.—Within twenty-four hours after the arrival of any vessel from a foreign port, at any port established by law, or within any harbor, inlet, or creek thereof, the master is required to repair to the office of the chief officer of customs and make a report of the arrival of his vessel. This report of the master is good, although not made at the office of the principal officer of the customs. It is the failure to report that constitutes the offense, not the failure to make it at the principal office. And so where the boarding officer and chief officer were the same person, he went aboard, and a report was made by the captain of the place from which his vessel came and the time of her arrival, and he received a copy of the manifest and made a certificate on the original, and this had been the custom at that port for thirty years, as to the report, it was considered sufficient."

He is required to deliver to the first officer of customs boarding the vessel after her arrival in any collection district in which the cargo, or any part thereof, is intended to be landed, his manifest for inspection, and also to deliver copies of his manifest to such officers. manifest may be delivered at the time the report is made.5

The

In forty-eight hours after arrival, the master is required to make a further report in writing to the collector of the district, which shall contain all the particulars required to be inserted in the manifest. A special report is required to be made in the same period, of wines or distilled spirits."

The report of the master is to be made, whether the arrival at the port be voluntary or by stress of weather, even if the port is not intended as the port of discharge. The statute does not apply to a vessel arriving from a foreign port and passing through the waters of a river, forming the boundary between the United States and the territory of a foreign State, for the purpose of proceeding to such territory. Ships of war are exempt from report and entry, and this exemption extends to a privateer.10 So a vessel bound to some more

1 R. S. U. S. § 2808.

2 R. S. U. S. § 2774; Clifford, J., in Waring v. Mayor, 8 Wall. 117, 118.

3 U. S. v. Randell, 1 Curtis C. C. 369.

U. S. v. Randell, 1 Sprague, 546. These decisions were made under § 30 of the act of 1799, but the language in Rev. Stat. § 2774, is the same.

R. S. U. S. § 2872.

R. S. U. S. § 2775.

9 The Apollon, 9 Wheat. 362.

R. S. U. S. § 2774.

8 U. S. v. Webber, 1 Gall. 392.

10 The Wilson v. U. S. 1 Brock, 423.